Writ Petition Nos. 3419 to 3424, 3426 to 3429, 3444 to 3447, 3507, 3633 and 3634 of 1969 and 521 to

Judge

Ramaprasada Rao, J.

Reported in

[1973]31STC132(Mad)

Appellant

The National Fire Works Factory and ors.

Respondent

Deputy Commercial Tax Officer, and anr.

Appellant Advocate

M.R.M. Abdul Karim and ;M.M. Abdul Razak, Advs.

Respondent Advocate

K. Venkataswami, First Assistant Government Pleader

Disposition

Petition dismissed

Cases Referred

Sitalakshmi Mills Ltd. v. Deputy Commercial Tax Officer

Excerpt:.....were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an..........is that the rate of tax on turnover under section 8(2)(b) will be less than 2 per cent, if the state rate of tax is lesser than 2 per cent. but the rate on the similar turnover will be 7 per cent, or 10 per cent., if the state rate of tax exceeds 2 per cent. the legislative entry relating to tax on sales does not clothe parliament with such arbitrary powers, which are not ancillary or incidental.4. on the basis of such additional affidavits filed, permission was sought for a further argument leading to the contention that any levy of tax under the central sales tax act in excess of 2 per cent, is illegal and to that extent section 8(2)(b) is ultra vires the provisions of the constitution. i may immediately state that these applications for filing additional affidavits and for raising.....

Judgment:ORDER

Ramaprasada Rao, J.

1. In this batch of petitions, a simple question arises. It is enough to notice the facts in W.P. No. 3419 of 1969. The petitioners are manufacturers and dealers in fireworks. Their grievance is that for the years 1963-64 to 1967-68, they were excessively assessed under the Central Sales Tax Act, as at the time of assessment, they were unable to produce the 'C' forms and the higher rate of tax was invoked in the matter of their assessable turnover. The petitioners, in the main affidavit, which is the pattern adopted in all cases, accept the assessments. But their main grievance is that the higher rate of tax ought not to have been collected for the non-production of the 'C' forms. Reliance is placed upon a decision of this court in Sitalakshmi Mills Ltd. v. Deputy Commercial Tax Officer [1968] 22 S.T.C. 436. In the instant case, the petitioners are not aggrieved against the order of assessment, nor is it their contention that they ever did produce the 'C' forms before the authorities for the purpose of claiming a reduction in the rate of tax. But, being enlightened by a later pronouncement of this court in Sitalakshmi Mills Ltd. v. Deputy Commercial Tax Officer [1968] 22 S.T.C. 436, they have come forward with this writ petition for the issue of a writ of mandamus directing the respondent to refund the excess amount of tax collected from the petitioners. In fact, the prayer runs as follows:

I, therefore, pray that this court may be pleased to issue a writ of mandamus or any other appropriate writ directing the respondent to refund a sum of Rs. 2,34,754.39 for the assessment years 1963-64 to 1967-68 and pass such orders as this Honourable Court may deem fit.

2. As I said and it is accepted, this is the pattern for the affidavits in the other cases and no allegation has been made to sustain the prayer for the rule of mandamus sought for or the claim for refund asked for.

3. Later, however, applications have been filed for enlargement of the content of the affidavits as also the prayer. In the additional affidavits filed, it is stated as follows :

I submit that the orders of assessment levying more than 2 percent. of tax on the turnover without 'C' forms are discriminatory, violating Article 14 of the Constitution. In similar cases, I reliably understand that there are directions by the Government to levy tax at the rate of 2 per cent and assessments have been made in many cases accordingly. Copies of such assessment orders are filed herewith.

Section 8(2)(b) read with Section 8(2)(A) is arbitrary since the consequence of the said provisions is that the rate of tax on turnover under Section 8(2)(b) will be less than 2 per cent, if the State rate of tax is lesser than 2 per cent. But the rate on the similar turnover will be 7 per cent, or 10 per cent., if the State rate of tax exceeds 2 per cent. The legislative entry relating to tax on sales does not clothe Parliament with such arbitrary powers, which are not ancillary or incidental.

4. On the basis of such additional affidavits filed, permission was sought for a further argument leading to the contention that any levy of tax under the Central Sales Tax Act in excess of 2 per cent, is illegal and to that extent Section 8(2)(b) is ultra vires the provisions of the Constitution. I may immediately state that these applications for filing additional affidavits and for raising additional grounds were dismissed by me before appreciating the only real contention in the writ petitions, as they do not arise herein and as it is merely a ruse to introduce certain contentions which the petitioners never thought of when they filed the writ petitions. Again, I rejected the applications for filing further affidavits and to raise additional grounds on the ground that the orders of assessment were never challenged in a manner known to law and they have become final in the eye of law and it would be highly unjust and indeed improper to allow such contentions to be raised at this stage and in an ancillary way, which is totally irrelevant and unconnected with the main issue arising in the writ petitions set before me for disposal.

5. To continue the narrative, the respondent in the counter-affidavit states that the tax under the provisions of the Act was collected under lawful orders of assessment and there is absolutely no ground for the issue of a rule of mandamus for refunding the alleged excess tax collected by the State.

6. In the course of the arguments, Mr. Abdul Karim, the learned counsel for the petitioners, stated that he is resting his contention on a notification issued by the State Government in exercise of its powers conferred by Sub-Section(5) of Section 8 of the Central Sales Tax Act. This notification is G. 0. 3234, Revenue, dated 16th August, 1962 and it runs as follows :

In exercise of the powers conferred by Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the Governor of Madras hereby directs the tax payable under Clause (b) of Sub-section (2) of the said section, in respect of the sales of handmade matches by any dealer in the State of Madras to any person in any other State in India, in the course of inter-State trade or commerce, shall be calculated at two per cent.

7. Under this notification, if any dealer in the State sells handmade matches to any person outside the State, then he shall be liable to pay at the reduced rate of tax, namely, 2 per cent. On the basis of this it is stated that the petitioners,, who are manufacturers of handmade matches, should be deemed to have gained that entitlement as to the concession as per the notification as above and on this ground the petitioners would automatically be entitled to the issue of rule of mandamus resulting in the direction for the refund of the excess tax collected.

8. On the first blush though the argument is attractive, yet a rule of mandamus cannot issue for the refund of such amounts collected. If the petitioners have an alternative remedy to get such a refund by instituting suits in a civil court, then that remedy being adequate and efficacious, no writ under Article 226 of the Constitution shall issue at all. On this ground alone, these writ petitions could have been dismissed.

9. But the learned counsel made a further argument saying that the present stand of the respondent is that the matches, though handmade in nature, yet are coloured matches and as the product is different from matches, as they are popularly understood and as coloured matches belong to a distinct and separate category under the head of matches, the dealings in respect of such coloured matches cannot gain the concession even under the notification. But the answer is that the notification as such does not make any such distinction or classification and as the head 'matches' can take in both safety-matches as well as coloured matches and if that is a plausible interpretation, then the subject should be given the benefit of doubt and he should be granted relief. On the other hand, the learned Government Pleader would state that the word 'matches', whether handmade or otherwise, has had always a common signification to the trade and it was understood only as safety-matches and such a doubt was felt even by the trade when the Madurai Ramnad Chamber of Commerce sought for clarification whether the term 'handmade matches' in an analogous notification would include handmade coloured and star matches. I have used the expression 'analogous' because a similar relief was granted under the Madras General Sales Tax Act as well and in that connection, Notification No. 1042, Revenue, dated 29th March, 1966, was issued granting full exemption in respect of tax payable by any dealer under the Act on all sales of handmade matches. The Chamber of Commerce wanted a clarification whether handmade matches would include handmade coloured or star matches. After hearing their representations, the Government declared their intention so to exempt from tax handmade ordinary matches and not coloured and star matches. In this context, the learned Government Pleader says that even on the basis of the understanding of the trade, the words 'handmade matches' are equatable to handmade safety-matches and not to the special variety of handmade coloured matches and, therefore, it is said that there is no ambiguity in the expression and that the doubt arising in the understanding of that expression is fallacious.

10. I have looked into the notification dated 16th August, 1962, which is the basis for the claim for refund in these writ petitions and for the consequential issue of writs of mandamus. This refers to the concessional rate of tax in respect of sales of handmade matches by any person who engages himself in inter-State trade. The question, therefore, is whether there is any ambiguity in the expression 'handmade matches' and whether popularly matches are equated with or understood as coloured matches or star matches as well. I have referred to the contention of the learned Government Pleader that the trade itself was understanding the expression of handmade matches as ordinary matches and not as including handmade coloured matches. It sought for a clarification from the Government whether the exemption would cover the sales, whether inter-State or intra-State, of handmade coloured or star matches. It was in that connection that the Government exemplified the situation, after consulting the appropriate authorities and made it clear that the intention of the Government was to exempt from tax handmade ordinary matches and not coloured or star matches. They, therefore issued the clarificatory amendment to their Notification No. 1042, Revenue, dated 29th March, 1966, issued under the Madras General Sales Tax Act and after the amendment, the notification gave exemption to sales of handmade matches other than handmade coloured matches and star matches. This amendment was made not intending to create a new situation but only to declare an existing state of affairs. The clarification issued by the Government and referred to above itself says that as the expression 'handmade matches' occurring in the notification is likely to be interpreted to include handmade coloured and star matches, it is considered that the notification dated 29th March, 1966, be amended to clarify that handmade matches referred to therein exclude coloured and star matches. Considered in the context of the clarificatory memorandum as above and as also in the light of the popular understanding of the word 'matches' in the trade, I am unable to agree that any doubt is projected in the expression 'handmade matches', which is found in G.O. 3234, Revenue, dated 16th August, 1962, issued under the Central Sales Tax Act. Mr. Karim would however stress upon the fact that 'handmade matches' is an expression which would take in matches of all kinds and therefore the concession as to rate ought to have been extended by the authorities even to coloured matches as well. I do not find any difficulty in understanding the expression 'matches' in the notification as referable to ordinary matches that are sold in the market normally as safety-matches. Coloured matches or star matches are matches manufactured for a particular purpose and intended for a particular use. They are not popularly known as matches or safety-matches. Therefore, the argument that there is an ambiguity inhered in the expression 'handmade matches' in the notification is without substance.

11. Lastly, it was sought to be made out that even if such a distinction or classification is possible, namely, handmade matches and handmade coloured matches, the concession cannot be delimited to safety matches alone and if that were to be the intention, it would offend Article 14 of the Constitution of India, In other words, it is stated that as all kinds of matches flow from a single genus and as the species only are different, any treatment in respect of such species differently under different circumstances would result in discrimination and the offending of Article 14 of the Constitution.

12. While considering the scope of a clause granting exemption, which is admittedly granted by the State in the exercise of its discretion and as a result of its expedience, I held in W.P. No. 3122 of 1969 as follows:

I am unable to agree that in cases where the courts are to interpret the scope of an exemption clause, which has necessarily an impact on the revenue of the State, the court has any discretion and a fortiori any power to go behind the text of the exemption or the meaning of the exemption as normally appearing on its face.

13. I have already expressed the view that the normal meaning of the word 'matches' according to the popular understanding of everyone is safety-matches and not coloured matches. If matches are asked in the market, coloured matches are not given.

14. Article 14 does not require a fanatical approach to the problem of equality before the law. Where the differentiation is based on a fair and objective hypothesis, it has to be sustained. The standard or yardstick to make a classification may sometimes be diverse, but on many occasions, such diversity may form the very basis of the classification. In the instant case, 'matches' which is the word now sought to be interpreted, having acquired a secondary signification in the market and in the public mind as safety-matches, it cannot be said that by granting a concession in the matter of rate of tax to matches, what was intended was a concession to sales in respect of coloured matches as well and if that is denied, there is a violation of Article 14 of the Constitution, because there has to be equality before the law. The executive in exercise of its power to grant such concession and obviously in its discretion has the power to classify the goods based on some real and substantial distinction between the two products, bearing in mind the object with which the concession is made or given. Safety-matches, though handmade, are the commoners' consumer goods, but coloured matches, though handmade, are fancy products not within the easy reach of the poor man., They are used on festive occasions and ordinarily purchasers of such products are persons other than have-nots. Therefore, this utility of the product was apparently borne in mind when the Government in exercise of its powers under Sub-section (5) of Section 8 made the notification and granted the concession. The object was to help the poor who had to necessarily use this product of matches day in and day out as one of their consumer goods. Therefore, it was that the handmade matches, which apparently refer to matches of the ordinary variety, namely, safety-matches, were sought to be made less costly so that they could be within the easy reach of the commoner. I am of the view that even if the argument were to be accepted, a reasonable classification has been made by the Government when they envisaged the concession and it cannot be said that they acted arbitrarily when they treated the two products separately to achieve their object, namely, to make ordinary matches as far as possible cheaper. From an overall analysis of the situation and in view of what transpired when the notification in question and the allied notification under the Madras General Sales Tax Act were issued, it is clear that the trade itself was treating these two products as distinct and separate. They never equated matches with coloured matches. Otherwise, it would not have sought for the clarification whether the notification dated 29th March, 1966, applied to handmade coloured matches as well. There is, therefore, a reasonable hypothesis on which the dichotomy has been made by the State. The petitioners have raised an issue that the concessional rate resulted in discrimination and, therefore, violation of Article 14. No material has been placed before me to adjudge the same on facts, nor does the record perused by me satisfy me that the petitioners have discharged the onus which is entirely on them, to establish that such a discrimination has crept in. I am, therefore, unable to agree with Mr. Karim that the concessional rate, if made applicable to safety matches alone, would result in the violation of Article 14 of the Constitution.

15. The main request of the petitioners is for the issue of a writ of mandamus without seeking for setting aside the orders of assessment. This is not possible in the eye of law. Even otherwise, the alternative prayer for refund of certain amounts alleged to have been collected in excess is a matter which can be the subject-matter of a civil suit and if such is the position no rule under Article 226 of the Constitution can issue.

16. For all these reasons, these writ petitions are dismissed. But, there will be no order as to costs.